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More Ritual Than Result

By voting unanimously Tuesday to subpoena former Enron Corp. executive Kenneth Lay, the Senate Commerce Committee sent a very strong signal that it no longer is willing to play nice with Lay or anyone else who may have something interesting to say about the implosion of the Texas energy giant. But a subpoena is all about process, not substance, and this particular congressional power play isn't likely to force Lay to offer his two-cents-worth under oath anytime soon.

All the subpoena does, once it is properly served upon its target, is require that target to appear at a particular place and time. A subpoena does not and cannot compel testimony which means, in the context of the Enron case, that Congress may be able to force Lay to show up in Washington to face the wrath of angry members but it cannot force him to testify substantively about what happened to and with and by Enron. It may make for good television-- great confrontations in large committee rooms often do-- but it isn't likely to add to our body of knowledge about the criminal or civil or Congressional investigations. For that reason, this development is more about ritual and less about result; more about show and less about go.

Moreover, complicating matters a bit, it is not at all clear whether the Senate Commerce Committee itself can technically enforce the subpoena it has just issued. So if Lay for one reason or another doesn't particularly embrace the notion of accepting the subpoena, the Committee probably will be forced to seek a broader mandate from Congress to enforce its powers and that may take a little time. And then once that broader enforcement authority is obtained, it may be a day or two later before Lay actually is served. And then it may be a few days before Lay's scheduled appearance.

And all the while Lay will be free to mull over whether and to what extent he wants to invoke his Fifth Amendment right against self-incrimination once he sits down at the table in front of all those angry Senators. He almost certainly will do so, of course, because the fifth amendment option is a no-brainer for him here in the shadow of a pending criminal investigation and all the potential civil liability that's out there. In fact, I wonder whether Lay is re-thinking his decision Sunday to avoid coming before Congress voluntarily. He could have come to Washington of his own accord, politely invoked his Fifth Amendment rights Monday before the Committee, and this whole episode already would be over.

There would have been no need for a subpoena, no need for process servers. Instead of asking, "Where's Ken?" the media Tuesday would be focusing upon the testimony of Arthur Andersen chief Joseph Beradino, who appeared before a House Committee. You don't have to be an industry analyst to imagine why anyone in the Enron camp would want the Congressional heat off their company and on the accounting giant. That's just one of the reasons why Lay's actions over the past few day seem so incongruous. If he intended to "take the fifth" anyway, why avoid coming before Congress voluntarily? Why give his pursuers a political advantage? Why give the hounds a scent of blood? Why tick off the very people who likely will play such a key role in Enron's future?

If Lay holds the Fifth Amendment as his "ace in the hole," why did he allow his political and legal opponents to play out their hands? Surely he doesn't believe that he is going to be offered any form of immunity for his testimony. Members of Congress already are on record as saying that won't happen and even if a few politicians were inclined to give Lay a break in exchange for his testimony, federal prosecutors almost certainly would put their collective feet down and try to prevent that result. Big fish like Lay don't typically get immunity. Big fish like Lay get convicted based upon the immune testimony of guppies. And the feds only now are collecting information from those corporate "guppies."

So in light of what has happened since Lay decided Sunday to blow off his date on Capitol Hill, I suspect he'd like to take a Mulligan on that particular choice. But hindsight is 20-20 (Lay probably picked the Rams to beat the Patriots on Sunday, too) and now the former Enron chief has to be careful not to make any more missteps. For example, if he and his advisors were on the ball, Lay would come to Congress promptly, gladly accept the subpoena, and then invoke his rights. He wouldn't force congressional investigators to contort themselves trying to find him and get him to D.C. He wouldn't waste any more of the government's time and money. He would show up, take his verbal medicine, and then wait out the other investigations like the rest of us. Well, not exactly like the rest of us.